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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA     COMPUTER PROFESSIONALS FOR ) SOCIAL RESPONSIBILITY, ) ) Plaintiff, ) ) v. ) C.A. No. 93-0231-LFO ) UNITED STATES SECRET SERVICE ) ) Defendant. ) _______________________________)   PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT   Plaintiff initiated this action on February 4, 1993, challenging defendant Secret Service's failure to release certain agency records requested under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552. Specifically, plaintiff seeks disclosure of Secret Service records concerning "the breakup of a meeting of individuals affiliated with '2600 Magazine' at the Pentagon City Mall in Arlington, Virginia on November 6, 1992." The Secret Service filed its motion for summary judgment on April 19, 1993. Plaintiff opposes the agency's motion and cross-moves for summary judgment.   Background   On November 6, 1992, a group of young people gathered in the food court at Pentagon City Mall in Arlington, Virginia, to socialize and discuss their common hobby -- computer technology. Most of the attendees were readers of "2600 Magazine," a quarterly journal devoted to computer and telecommunications issues. The gathering was a regular, monthly event promoted by the magazine. See "Hackers Allege Harassment at Mall," Washington Post, November 12, 1992.   Shortly after the group had gathered, "they were surrounded by a few mall security guards and at least one agent from the Secret Service." Officers of the Arlington County Police were also present. The security guards demanded that the group members produce identification and compiled a list of names. The personal belongings of several attendees were confiscated and the group was evicted from the mall.   Several days later, plaintiff submitted a FOIA request to the Secret Service seeking agency records concerning the incident. The agency produced several newspaper articles describing the incident, but withheld two records which, according to the agency, "were provided to the Secret Service by a confidential source, and each consists solely of information identifying individuals." Defendant asserts that these two documents -- apparently lists of names compiled by the mall security guards -- are exempt from disclosure under FOIA Exemptions 7(A), 7(C) and 7(D). Plaintiff disputes the applicability of these exemptions to the withheld material.   Argument   I. The Withheld Information was not Compiled for a Valid Law Enforcement Purpose   Under the facts of this case, defendant has failed to meet its burden of establishing the threshold requirement of Exemption 7 -- that the information was compiled for valid law enforcement purposes. Without elaboration, defendant merely asserts that "[t]he two records being withheld ... are located in investigative files maintained by the Secret Service that pertain to and are compiled in connection with a criminal investigation being conducted pursuant to the Secret Service's statutory authority to investigate allegations of fraud." Def. Mem. at 3. This assertion falls far short of the showing an agency must make in order to invoke the protection of Exemption 7.   In Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982), the D.C. Circuit established a two-part test for determining whether the Exemption 7 threshold has been met.   First, the agency's investigatory activities that give rise to the documents sought must be related to the enforcement of federal laws or to the maintenance of national security. To satisfy this requirement of a "nexus," the agency should be able to identify a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible security risk or violation of federal law. The possible violation or security risk is necessary to establish that the agency acted within its principal function of law enforcement, rather than merely engaging in a general monitoring of private individuals' activities. ...   Second, the nexus between the investigation and one of the agency's law enforcement duties must be based on information sufficient to support at least "a colorable claim" of its rationality. ... Of course, the agency's basis for the claimed connection between the object of the investigation and the asserted law enforcement duty cannot be pretextual or wholly unbelievable.   673 F.2d at 420-421 (emphasis, citations and footnote omitted). Since the passage of the 1986 FOIA amendments, the court of appeals has slightly restated the Pratt test so that the agency must demonstrate a nexus "between [its] activity" (rather than its investigation) "and its law enforcement duties." Keys v. Department of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987).   As the court of appeals noted, the reason for requiring the showing of a "nexus" is to ensure that the agency was not "merely engaging in a general monitoring of private individuals' activities." Other courts have also recognized that "[i]f an agency 'was merely monitoring the subject for purposes unrelated to enforcement of federal law,' a threshold showing has not been made." Rosenfeld v. Department of Justice, 761 F. Supp. 1440, 1444 (N.D. Cal. 1991). See also King v. Department of Justice, 830 F. 2d 210, 230 (D.C. Cir. 1987) (court not required "to sanction agency claims that are pretextual or otherwise strain credulity"); Shaw v. Federal Bureau of Investigation, 749 F.2d 58, 63 (D.C. Cir. 1984) ("mere existence of a plausible criminal investigatory reason to investigate would not protect the files of an inquiry explicitly conducted ... for purposes of harassment").   In this case, the agency has not even attempted to make the requisite showing. It has not "identif[ied] a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible ... violation of federal law," as Pratt requires. Rather, the circumstances strongly suggest that the Secret Service was "merely engaging in a general monitoring of private individuals' activities" (Pratt), or conducting an inquiry "for purposes of harassment" (Shaw). If, as the agency's representations suggest, the Secret Service obtained a listing of individuals lawfully assembled at a shopping mall in order to identify computer "hackers," without benefit of probable cause or even articulable facts justifying such an "investigation," Exemption 7 cannot protect the collected information from disclosure. Indeed, as the Second Circuit has noted, "unauthorized or illegal investigative tactics may not be shielded from the public by use of FOIA exemptions." Kuzma v. Internal Revenue Service, 775 F.2d 66, 69 (2d Cir. 1985), citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 696 (D.C. Cir. 1977) (other citation omitted). The agency has offered no evidence that would rebut the inference that it is improperly collecting the names of individuals engaged in constitutionally protected activity.   The Secret Service has not met its burden of establishing the "law enforcement purposes" threshold. Nor has it demonstrated that any of the requisite harms would flow from disclosure, so as to meet the specific provisions of Exemptions 7(A), 7(C) or 7(D).   II. Disclosure Would not Interfere with a Pending Law Enforcement Proceeding   In support of its 7(A) claim, defendant again asserts, without elaboration, that the disputed records were obtained "in the course of a criminal investigation that is being conducted pursuant to the Secret Service's authority to investigate access device and computer fraud." Defendant further asserts that disclosure of the information "could reasonably be expected to interfere" with that investigation. As plaintiff has shown, the existence of a qualifying "investigation" has not been established. Nor, as we discuss below, could the disclosure of the withheld information be reasonably expected to interfere with defendant's vague inquiry.   Given the unique nature of FOIA litigation, plaintiff (and the court, absent ex parte submissions) must draw logical conclusions based upon defendant's representations. Here, defendant represents that 1) the records relate to the incident at Pentagon City Mall; 2) the records were obtained from a "confidential" source; and 3) the records consist "solely of information identifying individuals." Given that a list of names was compiled by mall security guards and that a record consisting "solely of information identifying individuals" is -- by definition -- a list of names, plaintiff and the court logically can assume that the compilation of names is being withheld.   The individuals who were required to identify themselves, and whose names were subsequently recorded, obviously know that they were present at the mall and that their names were taken. Under these circumstances, it is patently absurd for the agency to assert that   [t]he premature release of the identities of the individual(s) at issue could easily result in interference to the Secret Service's investigation by alerting these individual(s) that they are under investigation and thus allowing the individual(s) to alter their behavior and/or evidence.   In Campbell v. Department of Health and Human Services, 682 F.2d 256, 259 (D.C. Cir. 1982), the D.C. Circuit reached the obvious conclusion that Exemption 7(A) does not apply to information that was provided by the subject of an investigation -- it applies only to information "not in the possession of known or potential defendants." See also Grasso v. Internal Revenue Service, 785 F.2d 70, 77 (3d Cir. 1986) (where plaintiff sought disclosure of his own statement to agency, "[t]he concerns to which Exemption 7(A) is addressed are patently inapplicable"). Under the facts of this case, defendant's meager assertion of "interference" defies logic and cannot be sustained.   III. The Privacy Protection of Exemption 7(C) is Inapplicable in this Case   Defendant next seeks to shield the information from disclosure on the ground that it is seeking to protect the privacy of the individuals named in the records. Applying the balancing test of Exemption 7(C), the agency asserts that there is a substantial privacy interest involved and "no public benefit in the release of the names."   As for privacy interests, defendant claims that the disclosure of an individual's name in a "law enforcement file ... carries stigmatizing connotations." As noted, there is substantial question as to whether the withheld material qualifies as a "law enforcement" record. Indeed, the individuals themselves believe that their names were recorded for purposes of harassment, not law enforcement, and they cooperated with the news media to expose what they believe to be improper conduct on the part of the Secret Service.   As is set forth in the attached affidavit of counsel, a number of the young people who were detained at the mall have sought plaintiff's assistance in securing the release of relevant Secret Service records. By letter dated November 20, 1992, plaintiff submitted a FOIA request to the agency seeking information concerning eight individuals, and provided privacy releases executed by those individuals. The agency claimed that it possessed no information relating to those individuals. Plaintiff believes it is likely that some, if not all, of those individuals are identified in the material defendant is withholding. Given that plaintiff provided privacy releases to the agency, the invocation of Exemption 7(C) to withhold those names is indefensible.   The newspaper articles attached to defendant's motion belie the claim that there is no public interest in the disclosure of the requested information. The front page of the Washington Post reported the allegation that the Secret Service orchestrated the incident at Pentagon City Mall in order to monitor and harass the young people who gathered there. The individuals themselves have attempted to publicize the incident and gain the release of relevant agency records. The balance between privacy interests and public interest clearly weighs in favor of disclosure.   IV. The "Confidential Source" Protection of Exemption 7(D) is not Available in this Case   Finally, defendants invoke Exemption 7(D), emphasizing that the statutory definition of "confidential source" includes "any private institution." Again, the circumstances of this case render the exemption claim absurd -- the shopping mall was clearly the source of the information maintained by the agency and it has not attempted to conceal its cooperation with the Secret Service.   Shortly after the incident, the mall's security director, Allan Johnson, was interviewed by Communications Daily. According to an article that appeared in that publication, Johnson acknowledged that the mall's security staff was working under the direction of the Secret Service. "The Secret Service ... ramrodded this whole thing," according to Johnson. "Secret Service Undercover Hacker Investigation Goes Awry," Communications Daily, November 10, 1992, at 2. This admission belies defendants' suggestion that "[s]ources who provide ... information during the course of a criminal investigation do so under the assumption that their identities and cooperation will remain confidential ...."   As defendants concede, promises of confidentiality will be implied, but only "in the absence of evidence to the contrary." In this case, the evidence suggests that the source of the information has sought to deflect responsibility for the incident by asserting that it was, indeed, acting at the request of the Secret Service. The agency appears to be more concerned with protecting itself than with protecting the identity of a source that is in no way "confidential." Exemption 7(D) can not be used for that purpose.   CONCLUSION   Defendants' motion for summary judgment should be denied; plaintiff's cross-motion for summary judgment should be granted.  

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